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Politics : Foreign Affairs Discussion Group -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (54150)	10/23/2002 11:27:35 AM
From: zonder	Read Replies (1) \| Respond to of 281500

CB - Care to explain to us how you are so certain that the detainees are all terrorists? Last time I asked you this, you said "because our secretary of defense says so". I would appreciate a more plausible response, if there is one to be found. His answers to you were more than sufficient, imo, but if you say they are not, here's some more answers to some more questions by Nadine: >However, serving an unrecognised state does seem to be implied -- does Al Qaeda qualify as an unrecognized state? Where is >this state? This misses the point utterly. I have not and would not attempt to argue that Al Qaeda constituted a state in its own right. That would be a stupid position to adopt. My point was that Al Qaeda were allied (indeed in many ways were congruous see e.g. the background reporting in the Economist around a year ago) with the Taliban who were the then government of Afghanistan (even if not recognised by the USA). They therefore fall within Article 4(A)(1) of the Convention as "members of militias or volunteer corps forming part of [armed forces of a Party to the conflict]" as well as 4(A)(3) ("Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power") and, quite possibly 4(A)(2). >Wearing uniforms and bearing arms openly are specifically mentioned as necessarily qualifications -- do Al Qaeda >men do this? This is, in fact, only mentioned as a qualification to Article 4(A)(2): "2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of war." This article was specifically drafted to give legitimacy to resistance movements operating within occupied territory and was, like Art 4(A)(3), specifically included as a response to the way the Germans had treated resistance movements in territory they had occupied in the Second World War. It was intended to unambiguously prohibit and criminalise such treatment in future. In any event my understanding is that Al Qaeda men did wear uniforms and carry arms openly, as well as having a command structure, while engaged in military operations in Afghanistan. I'm sure you're going to pick up on (d) and start arguing that the 9/11 attacks were not in accordance with "the laws and customs of war" (in itself debatable but I think the better view is that they were criminal acts rather than acts of war) but this does not matter as Art. 4(A)(2) applies in respect of conduct on the battlefield. Anyway this whole debate can be skipped as, in my view, the Al-Qaeda prisoners fall within either (or both of) Art. 4(A)(1) or 4(A)(3). While I'm at it I would also like draw your attention to Art 5 of the Convention: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." Without prejudice to my position that the prisoners clearly fall within Art 4(A), at the very least doubt seems to exist so they should have the benefit of the Convention until such time as the ICJ rules on the situation (a case I would dearly love to see as it would be the first time the convention has had to be interpreted judicially and would, hopefully, deal with a number of questions which have been bothering me since I put my undergraduate dissertation together on this topic about 10 years ago). >This is why I asked, if a mob hit man is captured (let's even supposed he's captured outside the US), does your friend think >he should be treated as a POW? A stupid analogy. Read Art. 2 of the Convention and see if you think I would be enough of an idiot to think such a thing.